Sanyam Malhotra (Advocate) 09 February 2011

suit for specific performance or damages

my client has purchased property from defendants and has paid the moneys in full. defendant has acknowledgmed receipt of full and final payment in the AGREEMENT OT SELL, and on AFFIDAVIT also. Further has executed a GPA in favour of my client in respect of same property to do all acts, deeds,things. Also a WILL bequeathing the same property.

But is now contradicting his prior statements regarding payment received, and is alleging that money has not been paid to him.. \

So what is the sanctity of the affidavits and his previous statements made???

Reply Follow

3 Replies

Samir Jha (Advocate) 09 February 2011

Dear Mr. Malhotra,

First of all let us discuss the sancity of the Affidiavit.

Affiidavit is not included in the Definition of "Evidence" as mentioned under section 3 and can be used in evidence only if the court permits it to be so used for sufficient reasons.

But it still holds good as admission under section 18 to 21 of Indian Evidence Act.

You have not specified if the GPA and will is registered or not. However even if it is unregistered, it will still holds good at the intial level and thereafter you have to use it during cross examination to prove your case.

At this juncture, the question is what is the requirment of your client. If he wants he money back with damages and interest than you can file a suit for the same without going into the specific performance of the agreement.

You are also free to approach the court for specific performance of the contract and for an injunction during the continuance of proceedings along with damages and compensation. What is worth mentioning is that you have to specifically pray for stay, damages and compensation or else court will not be able to grant it.

Regards

Sanyam Malhotra (Advocate) 11 February 2011

yes it would amount to only an admission under evidene act, merely useful for xx-exam. will is duly registered. there is also an indemnity bond, in which they have acknowledged receipt of total sale consideration. GPA is also irrevocable as per the provisions in the contract act, as GPA for consideration is irrevocable.

Adv B.B.Gambhir #9814820602 (advocate) 11 February 2011

Brother first of all i would submit that as per section 17 of Registration Act, if the possession is delivered by virtue of any document, that document is required compulsory registration. so your agreement to sell is compulsory required to be registered. if it is not registered, it has no value in the eyes of law. but it can be helpful for the purpose of consideration made from your part. so you have to seek symbolic possession by way of filing of suit for specific perfrmance of the agreement to sell. the facts stated by my friend MR. Jha are true and correct i appreciate the same.